Blair Horner: Tobacco's Big Win in the Courts

A federal appeals court ruled last week that tobacco companies are not required to comply with the implementation of new graphic warning labels on cigarette packs, arguing that the law violated corporate free speech rights. These warnings are required by the federal government and are supposed to go into effect next month.

The requirement stems from a provision of a federal law passed in 2009. That law allowed the U.S. Food and Drug Administration (FDA) to regulate the manufacture, marketing and sale of tobacco products. It was the FDA’s decision to require the graphic warning labels as part of its effort to help educate children and adults about the dangers of smoking.

The warning labels, which would cover 50 percent of the front and back of cigarette packs, feature pictures that depict the consequences of smoking and text, such as “Cigarettes Cause Cancer.” The new warning labels would include a toll-free phone number, which connects callers with smoking cessation programs in their state.

The move by the FDA was in response to evidence that the tobacco industry has grown increasingly aggressive in preying upon the American public with misleading and fraudulent marketing practices over several decades.

Supporters of the new labels cited overwhelming evidence demonstrating that existing warnings have failed to inform the public adequately of the risks of tobacco use and that the large, graphic warnings would be effective at raising public awareness of the risks of smoking.

The idea for these new more startling warning labels is not new. Thirty-five countries now require health messages to comprise at least 50 percent of the overall package, and one country (Uruguay) requires warnings to cover as much as 80 percent of the cigarette pack.

The research into the effectiveness of these warning labels found compelling reasons to support the move. It found that large warning labels are the most effective; that that smokers reported greater recall for warnings that appear on the front, compared to the side, of packages; and that warnings with pictures are more effective than text-only warnings. Warning labels that included graphic images that elicit an emotional response have been shown to be the most effective.

Of course, there are compelling reasons why the government, and the public, should care. Tobacco use causes nearly one-half million deaths in the United States per year – roughly 1 in 5 deaths – and nearly 8.6 million people live with serious illness as a result of tobacco use. In addition, each year secondhand smoke causes about 50,000 deaths from heart disease and cancer among nonsmokers. The financial cost of tobacco use is staggering with smoking-related health care expenditures estimated to be as much as $100 billion annually.

Given that tobacco use is the leading cause of preventable death in the United States, and that the larger, graphic warning labels on cigarette packs have the potential to encourage adults to quit smoking cigarettes and deter children from starting in the first place, the FDA acted.

The tobacco companies, not surprisingly, looked at it differently. They sued to block the mandate to include warnings. Their argument was that the proposed warnings went beyond factual information into anti-smoking advocacy.

The federal government responded by arguing that the photos of dead and diseased smokers are factual.

However, this latest court decision is not the final word. In March, a different federal court ruled in favor of the FDA. It is looking more likely that this issue will be ultimately decided by the U.S. Supreme Court.

Until that time, the state and federal governments must continue to battle against the carnage caused by tobacco use and the tobacco industry.